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The Roberts Decision: No Switch In Time To Save Nine?

Did Chief Justice John Roberts, in a reprise of the celebrated “switch in time that saved nine”, change his vote at the last minute to uphold the Affordable Care Act?  My colleague Travis Jacobs e-mailed me early yesterday to  note an NPR report that, contrary to what some analysts were claiming based on their assessment of the written opinions in the health care case, only three days after the oral arguments last March Chief Justice Roberts had in fact voted with the four liberals judges to uphold the ACA.   That is, Roberts did not initially write an opinion to overturn the ACA only to change his mind at the last minute, as many bloggers have speculated based on how his opinion was written. Rather, from the very start, Roberts – as Chief Justice – was intent on crafting an opinion that offered something to both the liberal and conservative wings of the Court, while shielding it as much as possible from charges of partisan bias.

Shortly after Travis’ email, other news outlets chimed in with their own version of when Roberts’ made his decision. According to this CBS News story by Jan Crawford, Roberts had, initially, agreed to strike down the ACA, but he soon reconsidered and decided to uphold it, choosing to write the majority opinion himself.  That majority decision, according to Crawford, was due on June 1, which gave the dissenters until June 15 to draft a response which was written by Kennedy and Justice Scalia. In this version, then, Roberts appears to have decided relatively early to uphold ACA.

The dispute over the timing of Roberts’ decision is interesting because it reminds us that the Supreme Court is a political institution whose members often draft opinions in ways designed to attract maximum support with the goal of building a winning coalition. That is, they do not come to a decision as nine individuals, each acting independently to divine the true constitutional implications of a statute based on their own readings of the relevant case law.  Instead, they consider what their colleagues are saying, both as a means of coming to their own verdict, but also with an eye toward anticipating and shaping the final Court ruling. In this vein, it would not surprise me if all three sets of opinions – Roberts’ majority holding, and the two sets of dissents – were all crafted with an eye toward staving off defections and picking up additional votes.  Roberts, of course, with an interest in portraying the Court as above politics, wanted to avoid another 5-4 decision, while Kennedy needed a 5th vote to overturn ACA in its entirety. For her part, Ginsburg couldn’t be certain that Roberts’ vote to uphold would stand, so she wrote in the possibility that he might switch his position.

If true, how might have this sequential process of coalition building influence the wording of the justices’ opinions?  Note that Ginsburg’s dissent (all references to the justices’ opinions are from the final decision here) repeatedly addresses the Chief Justice’s arguments regarding the commerce clause, in often scathing tones.   The portions of her dissent discussing the “vegetable state” that I alluded to yesterday are particularly biting.  In contrast, as far as I can tell, Kennedy’s dissent barely mentions the Chief Justice or his arguments at all. Instead, he typically directs his response against “The government and those who support its position” and spends most of his time addressing the Solicitor General’s oral arguments, rather than Roberts’ majority opinion.  Indeed, after eviscerating the government’s claim that the mandate is covered by the interstate commerce clause, Kennedy dismisses the tax rationale that is the heart of Roberts’ defense by saying, in effect, that when passing ACA Congress called it a penalty, not a tax. Moreover, its provisions are those associated with a penalty, not a tax. As Kennedy writes, “We never have classified as a tax an exaction imposed for violation of the law, and so too, we never have classi­fied as a tax an exaction described in the legislation itself as a penalty….we have never—never—treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exac­tion a ‘penalty.’ Eighteen times in §5000A itself and elsewhere throughout the Act, Congress called the exaction in§5000A(b) a ‘penalty’…What counts is what the statute says, and that is entirely clear.” And later, he warns, “Impos­ing a tax through judicial legislation inverts the constitu­tional scheme, and places the power to tax in the branch of government least accountable to the citizenry.” That is, to borrow my analogy from yesterday, if it does not walk or quack – it is not a tax.

As I noted yesterday, some bloggers believe the difference in tone suggests that Roberts initially sided with Kennedy and the three conservatives, but then was persuaded late in the game to switch to uphold ACA.  Crawford suggests in her CBS times piece that Kennedy and the three conservatives decided, at some point, to stop engaging with Roberts’ argument altogether.  But as Orin Kerr warns, consistent with Travis’ comment, Roberts might have supported upholding ACA almost as soon as the oral arguments ended.  The different tones adopted by the two groups of dissenters might simply reflect the compressed time schedule under which the justices were forced to come to a decision on a very important and very complex case.  Assume that Roberts decided shortly after oral arguments to uphold the ACA.  He then worked carefully to craft an opinion designed to reach out, in part, to Kennedy in the hope of getting at least a 6-3 vote, rather than the less politically appealing 5-4 split decision. The dissenters, pressed for time to make the alternative case, begin drafting their response even before seeing Roberts’ majority opinion, which is why they direct so much of their opinion against the Solicitor General’s oral argument.  When Ginsburg finally sees Roberts’ draft, meanwhile, she can’t be sure that he will hold his ground, so she focuses all her firepower on critiquing his interstate commerce clause argument, in effect trying to win a fifth vote (perhaps from Kennedy.)

I don’t know when Roberts arrived at his decision, or whether he is, in fact, merely the latest Justice Roberts to “switch in time to save nine.”   But I am confident that he crafted his decision – as did each group of dissenters – not just on a reading of the case at hand within an understanding of the constitutional issues, but also with an eye toward building a winning coalition with very little time to spare. In this sense the Court, as an institution, is less like a legal temple housing priests in robes, and much more like the backroom in City Hall.

OK, OK, Enough Already! I’ll Post Something On Health Care

Nothing has happened in the ensuring three months to change my view, expressed in  my original post on the Supreme Court’s health care hearings last March, that that the best predictor of how the Court will rule today is how the lower courts’ have broken down on this case.  That means Republican appointees will vote against the individual mandate, and Democratic ones will support it.  This is not because Supreme Court justices view cases through a purely partisan lens, but because their legal perspective can’t help but be shaped by the same factors that influenced their partisan outlook.  In closely contested legal cases that turn on interpretations of ambiguous words, such as how to define “interstate commerce”, I don’t see a better decision rule.

This is a much guess as anything, of course, but I think it is a reasonable guess given the evidence.   For what it is worth, I think a decision to strike down the mandate, but only the mandate, is consistent with public opinion.  Thus, this recent Pew Research Center poll shows that a plurality of the public disapproves of the health care law in total..

This split has remained relatively consistent since Court’s public hearings on the case last March.  Most notably, the public’s views break down along partisan lines, particularly when it comes to the individual mandate.

This is why I think the electoral implications of today’s decision are likely to be overblown by the media.  Yes, both camps will try to frame the ruling in a way that bolster’s their candidate’s chances heading into November, but as the poll suggests, they will be mostly preaching to their respective choirs.   And while independents are, according to Pew, largely against the mandate, there is some evidence that opinion among this group is more closely divided regarding other components of the law.

Keep in mind as well that surveys consistently show that the economy and jobs are viewed as more pressing concerns by most voters, and that 70% or more of adults surveyed are satisfied with their current health care coverage.  So while I have no doubt that today’s decision is going to generate a torrent of media coverage, we should be careful not to be too swayed by the inevitable partisan spin that will inform much of what is said in the next several days.  Yes, in a close election, one can cite any number of factors as being potentially deciding, but in weighting those factors, health care comes in far below economic concerns.

If the Court renders its ruling on a narrow 5-4 basis, as I’m guessing it will, we will also hear about much damage this will do to the Court’s public standing.   Again, we need to keep this in perspective; public opinion toward the Court, while remaining generally favorable, has nonetheless fluctuated quite a bit in recent years.  I don’t anticipate that a split decision will inflict any lasting damage on the Court any more than its foray in 2000 into election year politics did – and that was viewed as a far more partisan decision.

Finally, the Court ruling today is not the final word on health care reform particularly if it renders a narrow ruling against the mandate, but does not throw out the rest of the law.

So, for now, sit back, grab your morning beverage of choice, and enjoy the fireworks.  Assuming the twitter feed doesn’t collapse, the SCOTUS twitter feed should have the decision almost as soon as it is announced.

10:19  No sooner did I send this than the Court decision came down – but not after CNN misreported the initial results.   In any case, it appears that mandate was upheld under the Congress’ taxing power and not as interstate commerce.  In effect, the Court stepped in and made the argument that the Obama administration should have made.   Interestingly, the Court broke down almost exactly as you might have thought – with the one exception of Roberts, who sided with the majority.   So, the attitudinal model of court decisionmaking gets a pretty big boost here, predicting 8 of the nine justices.  But in the end, it was that 9th that proved decisive.

Now, let the media overreaction begin!

10:29  Ok, I give up.  Again. Now some media outlets are saying that the practical effect of the decision is to undercut the mandate because people who refuse to pay the “tax” will not be penalized by their refusal.  I think I am going to step back and let legal experts actually read the ruling before trying to assess its meaning.

Here’s the actual opinion  by the Supreme Court, fresh from the printing press.

Not surprisingly, there is a LOT of spin going on right now, on both sides – almost all of which is overstating, in my view, the political impact of this decision.  Let’s read the opinion, let the political dust settle, and see where things really stand in 24 hours.  For now, and not surprisingly, everyone on every side sees a silver lining.  Conservatives think the Court just limited Congress’ use of the commerce clause, and strengthened federalism, consistent with recent trends in the Court’s decisions. Liberals are happy the mandate stands, albeit as an illustration of Congress’ taxing power.  Romney is happy to see the ruling take health care off the table, so the election can now be about the economy, where he runs stronger.  Obama is happy the mandate, and thus health care, survived pretty much intact (although the Medicaid restrictions still need to play out).  Roberts is happy because he managed to side with both the conservatives and liberals in one decision.  Even political scientists are happy because the justices ruled pretty much along the lines that their partisan affiliation would have one predict – indeed, on the interstate commerce clause, they ruled exactly as one might predict.

Only CNN is unhappy, because they blew the initial call.



No, Political Scientists Are NOT Lousy Forecasters – In Fact, They Are Pretty Good

First Nate Silver. Now Jacqueline Stevens!  Stevens is the Northwestern political scientist whose op ed piece in Sunday’s New York Times  sparked more than a little debate regarding the role of government efforts through National Science Foundation grants to fund political science research, and the quality of that research more generally.  Stevens leaves no doubt that she considers most NSF funding to have been wasted; as she writes,  “It’s an open secret in my discipline: in terms of accurate political predictions (the field’s benchmark for what counts as science), my colleagues have failed spectacularly and wasted colossal amounts of time and money.”

Not surprisingly, that rather sweeping statement generated a lot of pushback, much of it from political scientists (see here and here and here, for starters.) As the critics point out, her overly-broad generalization and cherry-picked examples misreads much of what political science tries to do, and how well it has done it, and in the process manages to distort Phil Tetlock’s argument in his recent book regarding when and why political “experts” often miss the mark in their predictions.  (Hint: Stevens’ op ed piece show evidence of falling prey to some of the cognitive biases Tetlock cites in his book.)

Rather than belabor these points, I want to focus on another claim she makes as a way of explaining more generally why her criticism misses its mark by such a wide margin.  In pointing out forecasting flaws in the discipline, Stevens’ writes, “Political prognosticators fare just as poorly on domestic politics. In a peer-reviewed journal, the political scientist Morris P. Fiorina wrote that ‘we seem to have settled into a persistent pattern of divided government’ — of Republican presidents and Democratic Congresses. Professor Fiorina’s ideas, which synced nicely with the conventional wisdom at the time, appeared in an article in 1992 — just before the Democrat Bill Clinton’s presidential victory and the Republican 1994 takeover of the House.”

The problem with Stevens’ assertion is that it completely mischaracterizes Fiorina’s published research on divided government.   (Full disclosure: Fiorina sat on my dissertation committee [something he rues to this day, no doubt], and was later a colleague of mine [again, not necessarily by his choice!]).  In fact, Fiorina’s research laid out a model that sought to explain the persistence of divided government in the post-World War II era despite on-going claims by pundits (and some political scientists) that it lead to policy gridlock and political stalemate.  And yet Americans more often than not voted in a way that maintained divided government.  Why did they so frequently act against their own presumed self-interest, and in favor of gridlock and stalemate? For Fiorina, the answer was rooted in part by the (not always fully articulated) desire among a subset of Americans to achieve a modicum of ideological moderation by “balancing” the parties in the face of increasingly partisan polarization.  In short, as the parties become more extreme, voters are more likely to split their tickets. Now, he does not claim this desire for “balance” is the only factor contributing to divided government.  Other structural factors, such as the increasing professionalization of state legislatures, which serve as a crucial breeding ground for individuals who eventually run for Congress, certainly influenced the long period of Democratic control of Congress, since that professionalization disproportionally advantaged Democrats.  That meant voters who sought to balance the two parties at the national level usually focused on voting in a Republican president. He acknowledges as well that his balancing model is but one of several possible ways that voters’ choices might produce divided government.

The crucial point, however, is that contrary to Stevens’ assertion, the transition to a Democrat president and Republican-controlled Congress in 1994 after the Republican midterm wave is perfectly consistent with his explanatory model! Indeed, in looking at state governments, Fiorina explicitly lays out a model that explains when states might choose a Democratic governor and a Republican-controlled legislature.  That model is applicable to the national level.  In her op ed piece, Stevens would have us believe that Fiorina’s model predicted that under divided government Democrats would control Congress and Republicans the presidency indefinitely.  But that is not what he predicted – he laid out a more general model of divided control which encompassed different political permutations that included varying patterns of Republican and Democrat presidents and Congresses.  The key to evaluating his model, then, is whether the change in the composition of divided government from 1990 to 1994 is consistent with his premises.  That’s the proper test of his forecast – one Stevens ignores.

More generally, Stevens’ mischaracterizes the nature of political science forecasting.  Thus, Fiorina’s forecast model is not designed to say that in 1994, because we had a Democratic president, Republicans would reclaim control of the House and the Senate.  (In fact, I know of very few political scientists who saw this happening!)  Instead, as with most forecast models, Fiorina constructed a probabilistic explanatory framework premised on some clearly articulated assumptions.  That is, he suggested that when certain factors were in place – extremely polarized parties, a difference in the perceived strength of the presidency and Congress – many voters would act in a particular way that would often lead to divided government.  The results in 1994 are consistent with his argument.

And this gets back to my debate with Nate Silver, and to the importance of theory more generally.  Anyone, looking back on national elections dating to the Truman presidency, can predict that the odds are good that we are going to see divided government again in 2012.  But without a theory, we don’t know why, which renders the prediction essentially useless.  What if, in fact, Republicans sweep to power and control all three branches come November?   That might not mean our model of divided government is wrong – in fact, it might be fully consistent with that model.  It all depends on the underlying theory – did we actually have the conditions that the theory says must be in place for divided government to occur?  For political scientists, then, it matters why a prediction is right or wrong.

And this leads to my second point: when outcomes do not comport with theory, we learn something that, hopefully, allows us to make the theory better.   (Of course, this doesn’t mean a post hoc readjustment of the theory to fit the latest data point.)  Forecasting is a way to test whether our understanding of an event is correct.  In making that forecast, however, political scientists try as well to signal how specific the likelihood of an outcome is.   We might not be able to state that the Soviet Union will collapse in 1992 anymore than the medical doctor can tell you if and when you will get cancer.  But perhaps we can make some general statements about the conditions under which authoritarian regimes are more likely to collapse, and with what probability, just as the doctor can recommend some dietary and environmental factors that medical science suggests are likely to decrease your chances of getting cancer.

The reality is that because of political science, we know a lot more about politics than would otherwise be the case.  In some areas – such as forecasting presidential elections – we actually know quite a bit (more than Nate Silver’s criticisms about election forecasting indicate, I would argue.)  Moreover, the best political scientists – because they rely on clearly articulated theories and have a method for testing that theory – are less prone to making the types of errors that Tetlock associates with “experts”.  This is not to say we don’t make mistakes.  But even when our forecasts prove wrong, learning can still occur.

For all these reasons, I disagree with Stevens’ assessment of the state of the discipline, at least that portion of the discipline with which I am most familiar.  Given the limits of what can be expected in a probabilistic world, political scientists are, in fact, pretty good forecasters, and they are getting better.

“Holier Than The Pope”: How Leaks Happen

President Obama just finished his press conference (I watched the CNN feed) and while most of the media reaction has been to his comment that “the private sector is doing fine”, I want to focus here on his push back against the charge leveled by some Republican Party leaders, including senators John McCain and Lindsey Graham, that members of his White House staff are deliberately leaking classified national security information to bolster Obama’s reelection chances.  Those charges were a response to recent news stories casting a generally favorable light on Obama’s anti-terrorism efforts, including this NY Times piece by David Sanger on Obama’s use of cyber warfare against Iran and this one documenting his role in targeting terrorists for drone strikes.  Republicans found Sanger’s story particularly troubling because it was based on research for his forthcoming book Confront and Conceal: Obama’s Secret Wars and Surprising Use of American Power . In his note on sources for the book, Sanger writes:  “Following the practice of the Times in reporting on national security, I discussed with senior government officials the potential risks of publication of sensitive information that touches on ongoing intelligence operations. At the government’s request, and in consultation with editors, I withheld a limited number of details that senior government officials said could jeopardize current or planned operations.”

For Republicans, this suggests the White House cooperated with Sanger in order to burnish Obama’s national security credentials heading into the fall election. Not surprisingly, when asked about this in today’s press conference, Obama said he found the idea  that he would authorize leaking classified security information for political gain “offensive.”  Moreover, as Press Secretary Jay Carney noted in yesterday’s press gaggle, Scott Shane – one of the authors of the NY Times drone kill list story, has stated  “The notion that the White House prompted the story or controlled our reporting and writing is absurd.”

I don’t doubt that Obama does not condone national security leaks.  Nor do I believe the New York Times published two generally favorable pieces at the White House’s bidding. But that does not mean the Times reporters didn’t rely on leaked information to write their story.  The reality is that it is all too common for a president’s political aides to wade into politically controversial waters, including leaking potentially classified information, if they believe by doing so they will help the president achieve a policy objective, or gain politically – and they often do so without telling the President in order to give him “plausible deniability”.   Recall, for example, the decision by Ronald Reagan’s national security adviser John Poindexter, working with the redoubtable Oliver North, to use “residuals” from the sales of arms to Iran to fund the Nicaraguan contras in the period 1985-86.  That decision was made, based on all available evidence, without Ronald Reagan’s knowledge, but when it was disclosed, Reagan bore the full brunt of the political repercussions.  Poindexter famously proclaimed that the “buck stops here” in trying to take full responsibility for the diversion, but of course this was politically naive; whenever a White House aide or senior official acts, the repercussions always fall back on the President – whether he authorized the act or not.

In 2003, of course, State Department Deputy Secretary Richard Armitage, for reasons that are still disputed, revealed to columnist Bob Novak that Valerie Plame was a CIA officer.  Novak was trying to find out why Plame’s husband Joe Wilson, a former Clinton administration official, had been sent to Niger to investigate whether Saddam Hussein had sought to buy uranium in the form of “yellowcake” as a precursor to making a nuclear weapon. Bush had made that charge in his 2003 State of the Union address, but Wilson subsequently wrote an op-ed piece saying that is not what he learned on his trip there, and that Bush had misrepresented the intelligence findings.   Armitage’s motives in revealing Plame’s work status remains a matter of debate; while Armitage contends that he revealed the information to Novak inadvertently, Novak stated that he thought the leak was deliberate.

The key point, however, is that although President Bush denies instructing Armitage to leak Plame’s name, and in fact promised to fire anyone in his administration who broke the law by unmasking a CIA officer,  his critics argued then, (and continue to argue today) that he in fact authorized the leak as retribution for Wilson’s op-ed piece.

And this, of course, is exactly the issue Obama will confront, particularly if Congress begins an official inquiry into the matter of national security leaks.  If one of Obama’s political aides did, in fact, leak classified information regarding cyber intelligence, it will hardly matter whether Obama authorized it, or knew of it, or not.  The political and legal repercussion will fall squarely on his shoulders.

Let me be clear – the motive for these acts is usually not political venality, or criminal stupidity so much as misguided zeal to carry out the president’s mission; White House aides are particularly susceptible to being more “holy than the Pope”, as presidency scholar Richard Neustadt once put it.  When one is deeply committed to the cause, it becomes all too easy to step over a line, particularly when that line is somewhat fuzzy and indistinct.  Note that Armitage was never prosecuted for his leak, in part because of the difficulty in determining whether he had committed a crime.  However, Lewis “Scooter” Libby, an aide to Vice President Dick Cheney, was found guilty and sentenced to 30 months in prison for covering up his discussions with reporters about the Plame affair.

With these examples in mind, I find it perfectly plausible that a high-ranking Obama official, convinced the President’s action in keeping this nation safe has been underappreciated, and wanting to do everything possible to insure his reelection, may have released some classified information to a reporter in the process of providing background material to a story.  Do I know this happened?  Not at all.  But if it did, we should not be surprised.  It wouldn’t be the first time – and it likely won’t be the last.

Meanwhile, our own Danny Zhang was at the University of Nevada, Las Vegas campus yesterday (Danny’s working on a campaign out there) and caught the President up close and personal, working the rope line.   There’s no truth to the rumor that Danny took the opportunity to advise Obama to read the Presidential Power blog, but Danny did remind me that “It’s great to study American Politics in America!”

How Will The Supreme Court Rule Regarding Obamacare?

How should the Supreme Court decide regarding the constitutionality of Obamacare?

I have no idea.  But even if I did, my opinion wouldn’t be worth much. After all, I’m a presidency scholar and this is a blog about presidential power, broadly defined.  But I’m confident that I understand how they will decide the case – and it’s not likely to have much to do with the wording of the Constitution, or related case law for that matter.

For those of you living under a rock, the Supreme Court has just concluded the third and final day of hearings regarding the constitutionality of the Patient Protection and Affordable Care Act – more popularly known as Obamacare – the controversial health care reform legislation passed by a Democratically-controlled Congress and signed into law by Obama in March, 2010. On Monday, the Court’s deliberations centered on whether the suit against Obamacare brought on behalf of attorney-generals and governors from 26 states was justiciable at this time.  (The key issue here is whether the fine for not buying health insurance as mandated under Obamacare is a “tax” or a penalty.  If the former, an argument can be made that the case cannot yet be heard, since no one has actually paid that tax penalty, and won’t until 2014 at the earliest.  However, neither the law’s proponents nor opponents want to delay a Supreme Court decision under this reasoning, and the justices seemed skeptical that the case should not be heard.)  Yesterday the Court heard arguments regarding the constitutionality of the individual mandate – the provision in the law that says everyone must have health insurance, or pay a financial penalty.   Today’s hearing centered on the issue of severability – whether all of Obamacare must fall if the mandate is found unconstitutional, and whether its proposed Medicaid expansion violates the federal-state partnership.

In listening to these hearings,  and reading the abundant commentary, it becomes quite clear that the Constitution or related case law isn’t going to be the determining factors in whether a majority of the Court finds Obamacare constitutional or not.  To be certain, when rendering their verdict, the justices will undoubtedly reference the Constitution as well as previous court cases such as Gonzales v. Raich and Wickard v. Filburn and U.S. v. Comstock. That is, they will ground their opinion explicitly in the meanings they attach to constitutional phrases, such as “necessary and proper” and “interstate commerce.”  And they will buttress their interpretation of these ambiguous phrases by citing these and other court cases.

But if the issues were as clear cut as both opponents and supporters of Obamacare would have us believe, the case probably wouldn’t be before the Supreme Court today.  In truth, as if often the situation with controversial legal cases, there are merits on both sides of the argument.   That’s why the 11th Circuit Court of Appeals (which voted 2-1 to overturn the mandate) and three district federal courts (two of which upheld Obamacare while a third did not) rendered different and not wholly reconcilable legal opinions on the matter. (And I’m sure I’m missing other court opinions on the matter, but you get my point – judges and other legal experts are divided!)

If a reading of the Constitution and legal precedent is not decisive, then how will the nine Supreme Court justices go about deciding the case?  By relying on their own political preferences and attitudes against the backdrop of public opinion.  And, as a political institution, that’s how the Court should arrive at this decision.  Whenever I make this argument, I understand that the legal purists among you recoil in horror, in the belief that politics should play no role in Supreme Court proceedings. Instead, you want the justices to behave like priests in robes, ruling ex cathedra from their legal temple without concern for partisanship or personal preference.

Dream on teen queen!  That view is wholly unrealistic and not even desirable.  For starters, justices are selected through an openly partisan process based in part on their political views; studies show that Democratic presidents overwhelmingly nominate Democratic judges, and Republicans opt for Republican ones.  They do so, presumably, in the belief that judges who share their partisan affiliation will vote in the “correct” way.  (That doesn’t mean they always get it right, of course! See David Souter.) Moreover, because the Court’s power rests primarily on the perceived legitimacy of its rulings, it can’t help but pay attention to public opinion.  This is not to say the Court merely reads the latest polls and rules accordingly.  But it does care about prevailing public sentiments, and most studies suggest that Supreme Court rulings and public opinion are rarely too far out of synch.  This should not surprise us – remember, justices come of age, politically speaking, under the same circumstances that shape the political views of many of their generational cohort. For all these factors, then, we shouldn’t be surprised that when trying to parse the meaning of ambiguous constitutional phrases, such as “necessary and proper”  or “interstate commerce” as applied to complex and novel issues like health care spending and insurance mandates that justices will fall back on their own broad ideological leanings.   How else can they be expected to reach a verdict?

Consider one of the key issues at the heart of this case: whether Obamacare creates a form of commerce and then forces individuals to buy a product, or whether it simply regulates a health care market in which everyone will, sooner or later, participate.  Where one comes down on this, I suspect, turns in large part on one’s broader ideological views regarding the role of government in the economy and in one’s private life.

So, if I am right, what does this suggest regarding how the Court will rule?   I’ll let others peer into the tea leaves of the justices’ questioning, or parse the implications of previous court rulings.   For me, the best evidence is the previous lower court rulings on this case.  If I’m counting correctly, with two exceptions every federal justice appointed by a Republican president has ruled against some aspect of Obamacare, while – with one exception – every justice appointed by a Democratic president has voted in its favor.  This follows on the heels of the congressional vote that saw every Republican vote against the health care bill.  Why should this change in the Supreme Court?  I don’t think it will.  My guess is the four Democratically-nominated justices –  Breyer, Ginsburg, Sotomayor and Kagan – will vote to uphold Obamacare.  The Republican-nominated ones – Scalia, Kennedy, Thomas, Alito and Roberts will vote against the mandate, although I suspect at least some of them will allow the rest of the law to remain in place even without a mandate.  If I am wrong about any of these votes, it is probably Kennedy’s – his questions on Day 2 seemed to suggest he was willing to accept the government’s argument that health care is a distinctly different type of commerce, one in which an individual’s decision not to buy insurance clearly impacts the financial standing of the insurance holders.  I should be clear – I base this prediction not on any deep knowledge of the relevant constitutional law, or after reading the transcripts or listening to the audio of the oral arguments.  So don’t bet the retirement fund on what I write.

What if I am correct and the Court rules against the mandate by a 5-4 vote? Dahlia Lithwick argues at that if a closely divided Court does rule in such a blatantly partisan manner, it risks further undermining its legitimacy which was already damaged due to its decisions in Bush v. Gore and more recently with the Citizens United case.  Lithwick notes that “The court likes to pretend it’s completely above public opinion, inured to the momentary zigs and zags of the polls. But most of us know that nothing could be further from the truth.” Citing a Bloomberg News national poll showing that 75 percent of Americans expect the Supreme Court’s decision regarding Obamacare to be influenced by the justices’ personal politics, Lithwick warns that  “To hand down a 5-4, ideologically divided opinion just before the Republican and Democratic Party conventions, would—simply put—prove that 75 percent correct, and erode further the public esteem for the court.”

The problem with Lithwick’s reasoning is that polling consistently shows that a plurality of Americans opposes Obamacare.  To be sure, some of that opposition is rooted in the belief among liberals that the legislation doesn’t go far enough, and the degree of opposition depends in part on survey question wording.  But it is safe to say that at no point since the legislation passed Congress has it received majority support. Much of that animosity  centers on the individual mandate whose coercive nature – while perhaps economically necessary to make Obamacare feasible – cuts against the grain of many Americans’ deep-seated cultural aversion to what they perceive as government infringement on individual freedom.  So it’s not clear to me that a closely-divided 5-4 decision against Obamacare will do much to impact public opinion toward the Court.

Keep in mind that public approval of the Court has declined a bit recently, but that decline is due to increasing dissatisfaction – but for different reasons – from liberals and conservatives.

About a third of Democrats generally feel the court is too conservative, while half of Republicans hold the opposite view. Independents come down in between although a slight plurality think the court is too liberal as opposed to too conservative.  Most independents, however, think the Court’s ideology is about right.

Given this preexisting partisan divide, it seems that barring a unanimous decision, how the Court rules regarding Obamacare is likely to be viewed by members of one party as primarily a partisan-driven decision.  Those in the other party will view it as correctly decided.  However, it is certainly plausible that many independents who are not sure where to come down on the issue will back the court, no matter what it decides. Put another way, when it comes to Obamacare, at least some of the public may be closely divided, but not necessarily deeply divided.

Looking ahead, the Court is likely to render its decision sometime this summer, near the end of its current session.  That will be just as the nominating process is winding down (I think!) but before the general election heats up.  No matter how the Court rules, Obamacare is likely to be an important issue in the presidential election, just as it was in the 2010 midterms.  But it’s hard to see how the Court’s verdict can make an already divisive issue even more polarizing.